The post-conviction court found as fact that petitioner had provided no
evidence demonstrating that his consecutive sentences were improper under ORS
137.123(5); (1) that he had provided no evidence that trial counsel unreasonably failed
to make any particular argument relating to the imposition of consecutive sentences; and
that he had provided no evidence that appellate counsel did not properly advise him
regarding his appeal. The court concluded that petitioner was not denied his state or
federal constitutional right to assistance of trial or appellate counsel. On appeal,
expressly relying on Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d
435 (2000), and Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403
(2004), petitioner renews his argument that both trial and appellate counsel were
inadequate in regard to the imposition of consecutive sentences.

To prevail on a post-conviction claim of inadequate assistance of counsel
under Article I, section 11, of the Oregon Constitution, a petitioner must prove, by a
preponderance of the evidence, facts demonstrating that counsel failed to exercise
reasonable professional skill and judgment and that the petitioner suffered prejudice as a
result. Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1991). To prevail under the
Sixth Amendment to the United States Constitution, a petitioner must prove that counsel's
performance "fell below an objective standard of reasonableness * * * under prevailing
professional norms" and that there is a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Strickland
v. Washington, 466 US 668, 688, 694, 104 S Ct 2052, 80 L Ed 2d 674 (1984). See ORS
138.530(1)(a) (post-conviction relief is available for a substantial denial of rights under
the state or federal constitution).

In order to prove prejudice of a constitutional magnitude, a petitioner must
show that counsel's advice, acts, or omissions had a tendency to affect the result of the
prosecution. Stevens v. State of Oregon, 322 Or 101, 110, 902 P2d 1137 (1995).
Whether a petitioner has demonstrated prejudice is a question of law that, in turn, may
depend on predicate findings of fact. Ashley v. Hoyt, 139 Or App 385, 395 n 8, 912 P2d
393 (1996). If the post-conviction court made such predicate findings, we are bound by
them if they are supported by evidence in the record; if the post-conviction court did not
expressly make such findings, we nevertheless assume that it did so in a manner
consistent with its ultimate conclusion of law. Lichau v. Baldwin, 333 Or 350, 359, 39
P3d 851 (2002).

In this case, whether petitioner's trial counsel or his appellate counsel
exercised reasonable professional skill and judgment in regard to the imposition of
consecutive sentences entails an examination of the state of the law at the relevant times.
See Peralta-Basilio v. Hill, 203 Or App 449, 452, 126 P3d 1 (2005), rev den, 340 Or 359
(2006)(citing Wells v. Peterson, 315 Or 233, 236, 844 P2d 192 (1992)). If a lawyer
exercising reasonable professional skill would have recognized the existence of an issue
and would have concluded under the circumstances that the benefits of raising it
outweighed the risks of doing so, failing to raise the issue may constitute inadequate
assistance. Buffa v. Belleque, 214 Or App 39, 42, 162 P3d 376, rev den, 343 Or 690
(2007).

At the time that petitioner was sentenced, it had been several years since the
United States Supreme Court had decided Apprendi, which held that, consistently with
the Sixth Amendment, any fact--except the fact of a prior conviction--that increases a
sentence beyond the prescribed statutory maximum sentence for a particular offense,
unless admitted by the defendant, must be proved to a jury beyond a reasonable doubt.
Apprendi said nothing however, about whether those requirements apply to the imposition
of consecutive sentences, and, at that time, no state appellate court--in Oregon or
elsewhere--had extended the principle to those sentences. See State v. Tanner, 210 Or
App 70, 80-85, 150 P3d 31 (2006)

, vac'd and rem'd, 343 Or 554, 173 P3d 831 (2007)
(reviewing development of law and determining that, as of the time of the court's decision
in that case, an Ohio Supreme Court case decided earlier that same year was the only state
appellate court case to have extended Apprendi principles to consecutive sentences).

Given the state of the developing law at the relevant times, we conclude that
neither petitioner's trial counsel, who failed to raise the issue at sentencing in December
2003, nor petitioner's appellate counsel, who, prior to November 15, 2004, failed to
advise petitioner to raise the issue on appeal, failed to exercise reasonable professional
skill and judgment. Specifically, as discussed above, at the time of petitioner's sentencing
in December 2003, although the United States Supreme Court had decided Apprendi,
neither that court nor an Oregon or any other state appellate court had determined that the
principles articulated therein apply to consecutive sentences. Accordingly, trial counsel
was not deficient for failing to raise that issue. Because trial counsel did not raise the
issue, it was not preserved for appeal; moreover, after this court decided in Fuerte-Coria
that the imposition of consecutive sentences based on facts not found by a jury or
admitted by the defendant was not plain error, appellate counsel properly determined that
the issue was not raisable as such.

In short, neither petitioner's trial counsel nor his appellate counsel failed to
exercise reasonable professional skill and judgment in regard to the issue or rendered a
deficient performance. See also Chase v. Blacketter, ___ Or App ___, ___ P3d ___ (July
2, 2008) (post-conviction petitioner's criminal trial counsel did not render deficient
performance by reason of failing to object to consecutive sentences on Sixth Amendment
grounds). Having so concluded, we need not reach the question whether petitioner was
prejudiced by counsels' performance. The post-conviction court did not err in denying
petitioner's petition for post-conviction relief.

"(5) The court has discretion to impose consecutive terms of imprisonment
for separate convictions arising out of a continuous and uninterrupted course of
conduct only if the court finds:

"(a) That the criminal offense for which a consecutive sentence is
contemplated was not merely an incidental violation of a separate statutory
provision in the course of the commission of a more serious crime but rather was
an indication of defendant's willingness to commit more than one criminal
offense; or

"(b) The criminal offense for which a consecutive sentence is
contemplated caused or created a risk of causing greater or qualitatively different
loss, injury or harm to the victim or caused or created a risk of causing loss, injury
or harm to a different victim than was caused or threatened by the other offense or
offenses committed during a continuous and uninterrupted course of conduct."

2. In December 2006, we reached the merits of the consecutive-sentence issue in
Tanner, holding that the Sixth Amendment did not require the facts supporting consecutive
sentences to be found by a jury. In State v. Ice, 343 Or 248, 170 P3d 1049 (2007), cert granted,
___ US ___, 128 S Ct 1657 (2008), the Oregon Supreme Court disagreed, holding that the Sixth
Amendment right to jury trial does, indeed, apply to facts supporting consecutive sentences.
Because those developments in the law came after the appellate judgment in petitioner's criminal
case had issued, they are not material to our analysis in this case.